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Examples of Public Sector Inquiries: Commonwealth Paedophile Inquiry
Brendan Bailey
Law and Bills Digest Group
Author's Note
No speculation, inference or assumption about the content of the
awaited report from the Commonwealth Paedophile Inquiry, nor about any
person associated with the Inquiry, is made or implied in this paper.
Any comment made about the Commonwealth Paedophile Inquiry is based on
publicly available documentation and is confined to the procedural aspects
of the Inquiry. These procedural aspects were discussed in two separate
but related Federal Court hearings in the latter half of 1996.
Major Issues Summary
Introduction
Part 1
The Various Types of Public Inquiries Initiated by
Executive Government: Separation of Powers Doctrine
Royal Commissions: Judicial Inquiries
Permanent Watchdog Inquiries
Public Service Act Inquiries
Ad Hoc Advisory Committees of Inquiry or Task Forces
Law Reform Commission Inquiries
Departmental Inquiries
Specific Powers of a Royal Commission: Judicial Inquiry
Part 2
A Brief Observation of the Origin and Approach To An
Inquiry Utilised by the Commonwealth Paedophile Inquiry
Powers and Procedures of the Commonwealth Paedophile Inquiry
Some Observations about the Powers and Immunities
of the Commonwealth Paedophile Inquiry
Qualified Privilege
Costs Involved in an Inquiry: Example of a less formal Royal Commission
Concluding and General Observations on Public Sector
Inquiries
Endnotes
Attachment A: Paedophile Inquiry Terms of Reference
It is now history that when the First Fleet sailed for Australia in
1787 it may have carried the seeds for corruption in the new colony. Actually,
it was rice-which had been corruptly substituted in lieu of a larger entitlement
of flour used to feed the convicts. The need for public inquiries in regard
to public administration, public tenders, the opportunism of the colonial
military force (later known as the 'Rum Corps') and patronage in government
appointments began early in Australia. Public suspicion has endured. In
a recent poll conducted in New South Wales by the Independent Commission
Against Corruption, 96% of those polled believed that corruption in the
public sector is a problem.
The most powerful form of inquiry is a Royal Commission. Australia has,
however, departed from the English approach to Royal Commissions in that
a Royal Commission in England is usually confined to establishing facts
concerning economic and social issues. A Royal Commission in England operates
in accordance with the common law. Australian Royal Commissions, in comparison,
can be both investigatory and inquisitorial. Australian Royal Commissions,
at both the Commonwealth and State level, draw their authority from the
various Royal Commission Acts and, when necessary, from a specific
statute passed for a particular inquiry. The enabling statute invariably
includes coercive powers including the power to compel evidence including
admissions which are self-incriminatory.
A Royal Commission (including a judicial inquiry) is not the only method
of inquiry into public administration. In recent years several statutory
Commissions have been established in Australia to investigate corruption
in public office and in the police force. These independent bodies frequently
engage retired judges or senior counsel to investigate specific references.
There are also inquiries authorised by a statutory office-holder, such
as the Public Service Commissioner. Other types of inquiry include ad
hoc task forces, internal departmental inquiries and reviews conducted
by advisory bodies on a range of topics including law reform. In addition,
there are permanent or standing review bodies such as the Ombudsman, anti-discrimination
bodies and merit protection agencies.
Although some of these inquiries operate under Acts of Parliament, they
perform, essentially, an investigatory or advisory role for the executive
Government. They are not Parliamentary Committees and they are not courts
of law. Occasionally, it is necessary for the courts to intervene to ensure
procedural fairness in the conduct of an inquiry and to reinforce one
of the fundamental principles of a modern democracy-the separation of
powers between the Parliament, the Executive and the Judiciary. The High
Court has recently reminded the Commonwealth Government that it can be,
in certain circumstances, incompatible with the separation of powers doctrine
in the Australian Constitution to appoint an already serving judge
of the Federal Court to report on non-judicial matters.
Another major issue in any form of inquiry into public administration
is whether or not the inquiry is open to public scrutiny. One option may
be to ensure that all public inquiries are conducted in full public gaze
with no scope for in camera hearings and confidential reports.
The obvious problem with this approach is that once the stone of allegation
is sent tumbling down the mountain it often creates an avalanche which
claims the innocent and corrupt alike. Another option is to conduct inquiries
in secret. The argument against closed inquiries is that they may not
restore public confidence. The public has no assurance that the matter
has been adequately addressed. Another variation is to have a combination
of public and closed hearings with a full or partial public release of
the inquiry's findings.
The choice of type of inquiry is often difficult for a government. Some
inquiries are politically perilous and the fall-out from the inquiry may
politically embarrass those who established it. The Royal Commission
into Commercial Activities of Government and Other Matters (known
as WA Inc) in 1991 and the notable Fitzgerald Inquiry (1987) into
the enforcement of criminal law in Queensland are but two examples. Such
inquiries can also produce positive results. They may restore public confidence
and, in some cases, cause government administrative structures to be radically
changed.
Other inquiries have the potential to produce or reinforce a strong
and vocal public interest in ensuring that a matter is thoroughly examined.
The extraordinary public demonstrations in Belgium over the deaths of
children trapped by an alleged paedophile ring and the publicity surrounding
the expansion of the Wood Royal Commission on the New South Wales
Police Service into allegations of police protection of paedophiles clearly
show the depth of current public concern over issues brought to light
by some inquiries.
The Commonwealth Paedophile Inquiry, which was established in
May 1996 under the authority of the Public Service Act 1922, is
scheduled to release its report in Autumn 1997 on allegations of paedophile
activity (and the handling of those allegations) within the Department
of Foreign Affairs and Trade, AusAID and Austrade. The Inquiry has been
beset with controversy in relation to the legal issue of procedural fairness.
The type of inquiry chosen by the Government and the procedures employed
by the Commonwealth Paedophile Inquiry are worth examining from
a public administration point of view. It is also an issue which has been
already raised in Parliament. A primary issue is that an inquiry under
the Public Service Act 1922 may not have the breadth in powers
and privileges to obtain necessary evidence, particularly from non-public
servants.
The subject matter of the Commonwealth Paedophile Inquiry is,
of course, distressing and tragic and, in any event, it is inappropriate
to make any observations on the subject matter in advance of the release
of any report by the inquiry.
The early 1900s saw the first inquiry into the activities of a Minister
of the Crown in the State of New South Wales. The subject matter was land
and allegations of corruption. The former Minister under investigation
was Paddy Crick. It is interesting to note that this Royal Commission,
in 1905, exhibited most of the features that are found in the more recent
commissions of inquiry in Australia.(1) There was a 'bagman'. The former
Minister refused to answer questions. There were indemnified informants.
A key witness, the 'bagman', initially fled the jurisdiction on a boat
to South Africa but then returned (no doubt to the annoyance of some).
The Commissioner was challenged in the courts (for not administering an
oath properly). The Royal Commissioner persevered to present a finding
of corruption. Crick's removal from the service of the House was no less
dramatic. He was physically removed by the Sergeant-at-Arms while threatening
an action for assault. (2)
Historically, a Royal Commission was an inquiry established under Royal
prerogative. The information obtained was given on a voluntary basis.
A significant change occurred in England under Thomas Cromwell, the Lord
Protector, who armed his particular commissions of inquiry in 1535 with
special powers of compulsion. Cromwell's inquiries into monastic habits
and morals, and monastic revenues, are now regarded as examples of a political
ruse to first establish that there is a problem and, secondly, recommend
a solution which profits the Crown.(3) In that, and other respects, they
set in place many of the attributes that may be associated with such inquiries.
Political use of inquiries can sometimes bring mixed results. Commissioners
are, by definition, meant to be fearless and independent. Like a dedicated
retriever they sometimes unearth some unpleasant surprises. It is now
established that a commission of inquiry, with broad terms of reference,
is not bound by the rules of evidence. The inquiry may follow leads which
appear to be outside the terms of reference, provided the evidence sought
is a bona fide attempt to establish a relevant connection with
the subject matter of the inquiry (Lloyd v Costigan No. 2).(4)
Consequently, a commission of inquiry can rely upon what would otherwise
be inadmissible evidence to reach a conclusion (Jackson v Slattery).
(5)
Procedural fairness is, therefore, an important and necessary requirement
for such inquiries. While the courts in Australia may be reluctant to
pay much interest to such inquiries, they are concerned to ensure that
natural justice is observed; and when that requires judicial review of
inquiries, the courts are usually prompt in ensuring that it is delivered.
The avenue of judicial review of commissions of inquiry, at least at the
Commonwealth level, is also available under statutes such as the Administrative
Decisions (Judicial Review) Act 1977. Australian courts, however,
allow commissions of inquiry more latitude in their terms of reference
compared to the courts in other countries. In New Zealand, for example,
courts will not allow a commission of inquiry to usurp the criminal courts
by inquiring into whether crimes have been committed.(6) The only restriction
in Australia applies when criminal charges have already been made against
a particular witness.
The coercive powers available to compel evidence vary according to the
type of inquiry. This issue, combined with the difficult question of whether
the inquiry should be conducted in public or in camera (a hearing
in private), needs to be considered carefully when initiating an inquiry.
Part 1
The term 'Executive government' means the Crown in its administrative
aspect.(7) In other words, it includes all government departments and
agencies controlled by the Government of the day. It is distinct from
Parliament and the courts (the judiciary).
Public inquiries initiated by the Executive government, or under the
authority of an Act of Parliament, include:
- a Royal Commission
- a Judicial Inquiry
- an inquiry by a permanent watchdog, such as the New South Wales Independent
Commission Against Corruption
- an inquiry conducted by a delegate of an appointed statutory office-holder,
such as the Public Service Commissioner
- an ad hoc advisory committee of inquiry or task force
- a permanent advisory and inquiry body such as the Law Reform Commission
- a single purpose inquiry body such as the Constitutional Commission
- a departmental inquiry
- an industry inquiry by a consultant.
The common feature of these inquiries is that they are, essentially,
inquiries by the Executive government, either on its own initiative or
through one of its agencies. These inquiries are not courts of law (the
judiciary) nor are they the Parliament. Care must be taken in establishing
and conducting these inquiries not to breach the doctrine of the separation
of powers. Under the Australian Constitution, the doctrine operates
in the following way:
This Constitution vests the legislative, executive and judicial
powers respectively in distinct organs; and, though no specific definition
of these powers is attempted, it is conceived that the distinction is
peremptory, and that the clear invasion of judicial functions by the executive
or by the legislature, or any allotment to the judiciary of executive
or legislative functions would be equally unconstitutional. (8)
It was this latter issue which was examined in the recent High Court
decision on the incompatibility of a serving judge of the Federal Court
reporting on a non-judicial matter concerning Aboriginal heritage protection
and the proposed Hindmarsh Bridge in South Australia (Dorothy Ann Wilson
& Ors v. Minister for Aboriginal and Torres Strait Islander Affairs
& Anor)(9) The High Court pointed out that under the Commonwealth's
Aboriginal and Torres Strait Islander Heritage Protection Act 1984,
the person appointed to conduct the inquiry performs that role '...as
an integral part of the Minister's exercise of power. The performance
of such a function by a judge places the judge firmly in the echelons
of administration, liable to removal by the Minister before the report
is made and shorn of the usual judicial protections, in a position equivalent
to that of a ministerial adviser'.(10) The Court concluded that the function
was not one which the Minister could confer on Justice Jane Matthews nor
was it one which her Honour was capable of accepting. The Court also noted
that the separation of powers is not so rigid as to preclude a serving
judge from performing a non-judicial function such as a presidential member
of the Administrative Appeals Tribunal, provided true judicial independence
is observed.
Royal Commissions: Judicial Inquiries
A Royal Commission and a Judicial Inquiry are both commissions of inquiry
and both are authorised under Letters Patent (formal authority of the
Crown) issued by the Governor-General for matters arising at Commonwealth
level, and by a Governor of a State for State matters. For Commonwealth
matters, the Governor-General is authorised to issue Letters Patent by
the Royal Commissions Act 1902. That Act also specifies the coercive
powers and the privileges attaching to a commission of inquiry.
At common law, any person can make an inquiry. In contrast to the Australian
approach, in the United Kingdom a Royal Commission is governed by common
law only rather than by statute. Consequently, Royal Commissions in the
United Kingdom are confined to social and economic issues and they rely
upon the public volunteering information. Inquiries into wrongdoing in
the United Kingdom are conducted by tribunals appointed under statute
and with the approval of both Houses of Parliament.(11)
In Australia, Royal Commissions and judicial inquiries (essentially
they are the same) stand outside Government and the courts. Nevertheless,
they are regarded as an instrument of the Executive government used to
obtain evidence, establish facts and to make recommendations for policy
changes and, where necessary, to refer matters to other authorities for
possible prosecution of offenders. Courts in Australia are increasingly
asked to examine the activities of commissions of inquiry. As noted above,
this is because commissions of inquiry can conceptually distort the conventional
understanding of the separation of powers.
The Royal Commission into the New South Wales Police Service
is an example. The issue of Letters Patent by the Governor occurred on
13 May 1994 and was followed by a special Act of the New South Wales Parliament,
the Royal Commission (Police Service) Act 1994. The Act only applies
to that particular inquiry but its application can be extended to any
replacement or amended terms of reference for a Royal Commission on the
same or similar terms.(12) The Act relates its coercive powers and privileges
to both the Royal Commissions Act 1923 (NSW) and the Independent
Commission Against Corruption Act 1988 (NSW).
The Inquiry into the Relations Between the Civil Aviation Authority
and Seaview Air(13) is an example of a commission of inquiry authorised
by the Governor-General by the issue of Letters Patent under the Commonwealth's
Royal Commissions Act 1902. For convenience, this is referred to
as a 'judicial inquiry'.
Permanent Watchdog Inquiries
In the past decade there has been a trend in Australia to establish
permanent statutory authorities to deal with corruption. These permanent
watchdogs are, in effect, a standing Royal Commission or judicial inquiry.
The main purpose of these statutory authorities is to provide a continuing
focus on crime and corruption, rather than relying on public calls for
ad hoc inquiries when corruption spills over into the public arena.
In addition, traditional methods of combating corruption usually involve
utilising the very investigatory and enforcement agencies of government
which may themselves be part of the corruption problem. Consequently,
it is necessary to turn to independent permanent watchdogs which have
the power to investigate the very people whose duty it is to enforce the
law. Such authorities can also be pro-active in unearthing crime and corruption.
They are also a vehicle for generating systemic reform in the public sector.
These authorities include the Queensland Criminal Justice Commission
(CJC), the New South Wales Independent Commission Against Corruption (ICAC)
and the National Crime Authority (NCA).
Independent watchdogs like the Queensland CJC are established to receive
complaints concerning allegations of corruption and misconduct in public
administration and to conduct necessary investigations.(14) The main focus
of the CJC is the administration of criminal justice generally. It has
the following divisions and tribunals:
- official misconduct
- misconduct tribunals
- witness protection division
- research and coordination division
- intelligence division.
Reports by the CJC are tabled in Parliament, unless they deal with the
Courts (such reports go to the head of the relevant Court), or, in the
opinion of the CJC, the report contains confidential material.(15)
The CJC has statutory coercive powers (including the authority to use
listening devices) and the protection of privileges accorded under its
enabling statute.
These CJC inquiries are, by their very nature, matters of keen public
and parliamentary interest. The controversial Carruthers official inquiry
into alleged irregularities in the Queensland election campaign was an
independent inquiry established by the CJC pursuant to the Criminal
Justice Act 1989 (Qld). Kenneth Carruthers QC, a retired judge from
New South Wales, resigned his commission on 29 October 1996 before completing
his report, following the appointment by the State Government of a separate
judicial inquiry into the workings of the CJC itself. Reports of the resignation
of Kenneth Carruthers QC indicate that the reason for his resignation
was a perception by him of interference in his inquiry.(16) In turn, that
reason has been refuted by the commissioner appointed to inquire into
the workings of the Criminal Justice Commission, Peter Connolly QC.(17)
A no-confidence motion moved against the Queensland Government in the
State Parliament over the resignation of Kenneth Carruthers QC was defeated
on 31 October 1996. Mr Bob Gotterson QC was appointed by the Criminal
Justice Commission to review the material gathered by Kenneth Carruthers
QC. The cost of the Carruthers inquiry is estimated at $3 million.(18)
A finding of the inquiry was that the Queensland Police Commissioner,
the Hon Russell Cooper, was cleared of allegations of involvement in electoral
irregularities.(19)
The equivalent Commission in New South Wales, the Independent Commission
Against Corruption (ICAC), revealed in its Annual Report, issued
in October 1996, that it has conducted polling which reveals that 96%
of those polled believed that corruption in the public sector is a problem.
The ICAC receives nearly 900 complaints a year of which 35% allege corruption
in local government and 25% allege corruption in the New South Wales Police
Service.(20)
Public Service Act Inquiries
The Commonwealth's Public Service Act 1922 empowers the Public
Service Commissioner to enter any Department, summon any person whose
evidence appears material to an inquiry, take evidence and require the
production of documents in relation to any inquiry or investigation into
the Public Service.(21) Under the Public Service Act 1922, the
Commissioner may appoint a delegate to carry out such inquiries.
An example of such an inquiry was the examination in 1988 of recruitment
practices and certain aspects of personnel management in the then Department
of Aboriginal Affairs.(22)
Another is the Public Service Act inquiry which was announced
in May 1996 to examine the manner in which allegations of paedophile activities
have been dealt with by the relevant departments and agencies of Government.
Aspects of the powers and procedures for that inquiry are discussed in
more detail later in this paper.
Ad Hoc Advisory Committees of Inquiry or Task Forces
An example of a task force inquiry is the Small Business Deregulation
Task Force and its report Time for Business (November 1996).(23)
Such a task force is established at the prerogative of the Government
of the day and usually operates by way of terms of reference. An inquiry
of this kind is advisory only and it has no coercive powers or privileges.
At best, there may be the protection of the common law defence of qualified
privilege in certain exceptional circumstances, such as a criticism made
in good faith which was later shown to be erroneous.
These types of inquiries usually contain a range of recommendations
which aim to assist the Government formulate a response in terms of policy
changes or legislation in relation to a matter of national significance.
Law Reform Commission Inquiries
Law Reform Commissions (or equivalent Committees) are established at
the Commonwealth, State and Territory level to receive references from
the Government of the day to examine proposals for reform of laws. Some
of these reports are far reaching and, in time, are referred to by the
name of the Commissioner in charge of the inquiry. For example, the Australian
Law Reform Commission's report General Insolvency Inquiry (1988)
is known as the 'Harmer Report' after Mr R W Harmer, the Commissioner-in-charge.
The recommendations in that report are still relevant to legislative reform
today, particularly in the area of bankruptcy and company insolvency.
At the Commonwealth level, references to the Australian Law Reform Commission
are issued by the Attorney-General pursuant to the Law Reform Commission
Act 1973. The Australian Law Reform Commission does not have coercive
powers.
Most States in Australia have a Law Reform Commission. Victoria, however,
disbanded its statutory Law Reform Commission in November 1992. Some law
reform references in that State are carried-out by the Law Reform Committee
of the Victorian Parliament pursuant to the Parliamentary Committees
Act 1968 (Vic).(24) In addition to the Victorian Parliament's Law
Reform Committee, there is an advisory body to the Victorian Attorney-General
called the Law Reform Advisory Council. The reports of that body are not
made public but it advises the Government of issues of suggested law reform.
South Australia does not have a Law Reform Commission. Law reform in
that State is primarily a policy function of the State Attorney-General's
Department.
Departmental Inquiries
Departmental inquiries are usually initiated by a senior official in
a department, but they can be carried out at the request of a Minister.
In public service terms the authority for such an inquiry derives from
the fact that the officers in the department who are directed to prepare
summaries on matters related to the inquiry are operating under a lawful
direction. The lawfulness of such directions stems from the employer/employee
relationship and expressly from section 56 of the Public Service Act
1922.
During 1992-93, the Commonwealth Government encountered difficulties
with the tendering process associated with licenses for the introduction
of Pay TV. The then Prime Minister, the Hon Paul Keating MP, issued a
statement on 17 May 1993 to advise that the Government had decided '…to
abrogate the current tender process for new Multipoint Distribution System
Licences because of legal flaws'.(25)
The Pay TV matter involved a departmental inquiry which involved the
compilation of a departmental report on inconsistencies, as well as a
departmental chronology of events. In turn, these reports were assessed
as to their comprehensiveness by Professor Dennis Pearce pursuant to terms
of reference. Professor Pearce's inquiry followed a request of him by
the Secretary of the Department of Transport and Communications. Both
departmental documents were favourably reported on by Professor Pearce.
In his report, Professor Pearce also made a number of suggestions for
improving some aspects of the operation of the department.(26)
In the case of Professor Pearce, his involvement and authority stems
from an official request from the Secretary of the Commonwealth Department
to conduct an independent analysis on behalf of the Secretary.
Specific Powers of a Royal Commission: Judicial Inquiry
The Commonwealth's Royal Commissions Act 1902 includes the following
coercive powers:
- power to summons witnesses and take evidence (section 2)
- power to apply to a judge for a search warrant (section 4)
- power to compel a witness to give evidence, even if that evidence
is self-incriminating (section 6A)
- authority to issue a warrant for arrest of a witness failing to appear
(section 6B)
- power to protect the Commission and the Commissioner from contempt
(section 6O).
Royal Commissions are not bound by the rules of evidence and they may,
at their discretion, adopt an inquisitorial approach. These coercive powers,
however, do not remove the need for a commission of inquiry to observe
rules which promote procedural fairness. These rules include the rules
of natural justice which require an unbiased Commission and an opportunity
for any person named at an inquiry to be heard on any allegation of wrongdoing.
For example, in Ainsworth and Another v Criminal Justice Commission
(1992),(27) the High Court held that it was unfair to table a report of
a commission of inquiry (dealing with the poker machine industry) without
affording the opportunity for persons named in the report to be heard.
The High Court explained that such reports may have practical consequences
for personal reputations both at the time of the report and into the future.
The rules of natural justice must be observed to ensure procedural fairness.
Royal Commissioners, in the exercise of their duty, have the same protection
and immunity as a judge of the High Court. This means that the common
law of contempt applies to a Royal Commission as if it were a superior
court, as distinct from an inferior court such as a Magistrates Court
which has its contempt powers conferred by statute. The common law of
contempt empowers a presiding judge to control behaviour within, and in
the vicinity of, the court. A judge may expel disruptive persons from
the court. He or she may also decide whether a person is guilty of contempt
in the face of the court. The same judge may determine whether contempt
has occurred and impose a penalty. A witness or a legal practitioner appearing
before the Royal Commission have the same immunities and protection as
if they were appearing in the High Court (e.g. in that interference by
way of obstruction or threat of such persons would be a contempt).(28)
Not all contempts involve aggressive insults, blasphemous remarks and
threats of, or actual, assault. Contempt findings have been made in the
case of a person who released laughing gas into a court (Balogh v St
Albans Crown Court),(29) and a person who disrobed and lay naked in
a court (Gohoho v Linthas Export Advertising Services).(30)
Royal Commissions do not lay charges but the recommendations or findings
of the Commission may include matters leading to subsequent prosecutions
(e.g. Fitzgerald Inquiry in Queensland (1987)-Committee of Inquiry
into Possible Illegal Activities and Associated Police Misconduct).
The reports of Royal Commissions are usually delivered to the Government
of the day for tabling in the Parliament.
Part 2
| The purpose of this part of the paper is to assemble the key issues
and criteria relevant to the various forms of public sector inquiries
and to apply them, in a comparative sense, to a current public sector
inquiry, the Commonwealth
Paedophile Inquiry. The key issues and criteria include:
- what circumstances precipitated the establishment of the inquiry
- the form of inquiry chosen
- the powers and privileges applicable to the inquiry
- whether the inquiry is open to public scrutiny
- procedural fairness issues (in how the inquiry conducts its
affairs)
- the role of the courts in addressing fundamental rights such
as natural justice
- the cost of such inquiries
- the public interest issue.
This comparison is concerned with the form and procedure of inquiries
and it does not focus on the content of the Commonwealth Paedophile
Inquiry, the hearings for which are conducted in private. Also,
the Inquiry is yet to report.
|
On 29 May 1996, the Minister for Foreign Affairs, Hon Alexander Downer,
announced in the House of Representatives the establishment of a Paedophile
Inquiry.(31) Mr Christopher Terence Hunt, a respected senior officer
in the ACT Government Service, was appointed to conduct the Inquiry. The
purpose of the Inquiry was to consider the manner in which allegations
of paedophile activities by officers and former officers of the Department
of Foreign Affairs and Trade (as well as AusAID and Austrade) have been
dealt with by the relevant departments and agencies of Government. The
Terms of Reference for the inquiry accompanied the Ministerial
statement (see Attachment A). The inquiry was subsequently named the Commonwealth
Paedophile Inquiry. In passing, it is suggested that this is a somewhat
ambitious title since it is not really an inquiry into paedophilia per
se but an inquiry into how certain paedophile-related allegations
have been handled by the bureaucracy. The title does, however, offer the
convenience of brevity.(32)
The reason given by the Minister for Foreign Affairs for the Inquiry
was that it was necessary to examine the repeated allegations that officers
within his portfolio had been involved in paedophile activity and that
management had tolerated such activity. The Minister rightly commented
that, along with all Australians, he detested and condemned paedophilia.(33)
The Minister has stated that he is determined to expose any paedophile
activity and any cover-ups (if found) within his portfolio. He has also
said that should allegations be unfounded, the opportunity will be taken
to allow individual officers to have their names cleared of suspicion.(34)
On 11 October 1996, the Federal Court of Australia delivered its decision
on a challenge to the continuation of the Inquiry under Mr Christopher
Terence Hunt (Alastair John Gaisford v Christopher Terence Hunt and
the Commonwealth(35)). The case arose from an article in a newspaper
which attributed certain reported comments to 'sources close to the inquiry'.(36)
One comment so attributed was that the Inquiry '...has so far uncovered
loose language and a possible homophobic vendetta(37) rather than a "nest"
of paedophiles' and another was '...Some people have made a quantum
leap from a white male DFAT officer with an Asian male partner, who was
young when the relationship started, to paedophile activity. Whether it
is deliberate homophobia or a bona fide quantum leap, it is not justified,
the source said '.(38)
Mr Hunt had in fact given an 'off the record' briefing to the journalist
concerning the Inquiry and this briefing gave rise to the article.(39)
This came to the attention of Mr Gaisford who had been called to give
evidence before the Inquiry and he asked Mr Hunt to disqualify himself.
Mr Hunt declined, and Mr Gaisford sought from the Federal Court an order
that Mr Hunt not continue the Inquiry on the ground that the briefing
and the reported comments would give rise to a reasonable apprehension
of bias on his part, in that he had formed a concluded view on matters
that were still to be investigated by the Inquiry. Solely for the purpose
of arguing the case, the case proceeded on the basis that the 'source'
was Mr Hunt and that the comments were largely attributable to him.
The Court, at first instance, concluded, after examining the newspaper
article and some related correspondence, that the assertion of a reasonable
apprehension of bias was not sustained. This decision was unanimously
overturned on appeal to the Full Bench of the Federal Court. Mr Hunt was
ordered to not proceed with the Inquiry.
The Full Bench decision on the successful appeal by Mr Gaisford was
delivered on 6 December 1996.(40) The Full Bench analysed the newspaper
article and came to the conclusion that the views which could be attributed
to Mr Hunt were not tentative nor preliminary but that '...some of the
comments are explicit in their expression of a conclusion'.(41) The Full
Bench further concluded that when the whole of the circumstances were
taken into account (and not just the tenor of the article) a case of ostensible
bias had been made out and '...that the application of the rules of natural
justice requires that Mr Hunt not proceed further with his Inquiry'. (42)
It must be clearly noted that this court action was concerned with the
procedural issue of natural justice. This paper is looking at the forms
of inquiries and related issues such as procedural fairness. The discussion
of these cases should not be taken as a comment on any issue before the
Inquiry, on the conduct of any person who may give evidence to the Inquiry,
or the conduct of anyone involved in the Gaisford cases. The evidence
taken by the Inquiry is heard in private.
In a separate legal action, Mr Alastair Gaisford was also successful
in obtaining a ruling from Justice Paul Finn of the Federal Court that
Gaisford's suspension of security clearance and suspension from the Department
of Foreign Affairs and Trade for possible involvement in whistleblowing
about alleged paedophile activities was procedurally unfair and invalid.(43)
The purpose for mentioning these court actions is to demonstrate the
role of judicial review of matters which touch upon inquiries into public
administration, even when the greater part of the inquiry is not conducted
in public.
On 9 December 1996, the Minister for Foreign Affairs, Hon Alexander
Downer, responded to a Question Without Notice from Hon L Brereton MP,
to advise that the Public Service Commissioner had now appointed Ms Pam
O'Neil to carry on the Inquiry.(44)
Powers and Procedures of the Commonwealth Paedophile Inquiry
On 21 June 1996, the Commonwealth Paedophile Inquiry wrote to
staff in the Department of Foreign Affairs and Trade, AusAID and Austrade
outlining the powers and procedures for the Inquiry. This documentation
was made publicly available. The details included:
- advertisements to be placed in all major newspapers seeking submissions
by 19 July 1996
- the Inquiry is not a criminal investigation; any evidence of criminal
activity received by the Inquiry will be referred to the Australian
Federal Police for investigation
- the Inquiry hearings are to be conducted in private, with no other
party present or represented
- confidentiality and anonymity will apply but, in the interests of
natural justice, certain material may have to be put to another person
- natural justice will be afforded to all who may be affected by the
Inquiry's report
- the Inquiry will result in a public report but it may be necessary
to present some material in a confidential annexure.
The authority for the Inquiry is derived from a delegation by
the Public Service Commissioner of his investigatory powers under section
19 of the Public Service Act 1922 (initially to Mr Christopher
Hunt). Section 89A of the Public Service Act 1922 also provides
statutory protection from an action in defamation for any person who makes
a report, in good faith, concerning matters of work and conduct of officers
in the Public Service. The Inquiry also recognises the duty specified
under Regulation 72A of the Public Service Regulations which imposes on
the Public Service Commissioner a duty to inquire into matters within
the service which, in his opinion, should be investigated.
Section 19 of the Public Service Act 1922 contains coercive powers
to the extent that an officer of the Public Service who, without reasonable
cause, fails or neglects to comply with a summons or to answer questions
can be found guilty of an offence which is punishable by an term of imprisonment
of up to 6 months. Any other person who fails to comply with the requirements
of the Inquiry, in that they have information '...relevant to the subject
of the inspection, inquiry or investigation...', is also guilty of an
equivalent offence.
An important qualification on the extent of the coercive nature of the
power in section 19 of the Public Service Act 1922 is subsection
(4), which states:
(4) Nothing in this section shall be construed as compelling
a person to answer any question which would tend to incriminate him.
The ability to avoid self-incrimination in public service inquiries
is in marked contrast to section 6A of the Royal Commissions Act 1902,
which provides that it is not a reasonable excuse to refuse to answer
because of self-incrimination. The only basis for declining an answer
in a Royal Commission is that the question touches upon matters in respect
of which the person has already been charged.
When the Inquiry was announced in the House of Representatives on 29
May 1996, the Hon Laurie Brereton responded on behalf of the Opposition.
(45) Mr Brereton considered that the type of inquiry chosen by the Government
would be limited in terms of its powers because those powers may not apply
with the same effect in relation to non-public servants. Hence they could
not be effectively compelled to give evidence as witnesses or otherwise
assist the inquiry in its task. For example, it is worth considering the
effect of subsection 19(3) of the Public Service Act 1922, which
purports to apply to non-public servants. It states:
Any person, not being an officer, who, after payment or tender
of reasonable expenses, neglects or fails, without reasonable cause, to
attend in obedience to the summons, or to be sworn, or to answer questions
or produce documents relevant to the subject of the inspection,
inquiry or investigation, shall be guilty of an offence. (italics added)
A person who is a not a public servant but who is inadvertently named
by a witness before the Inquiry may take the perfectly understandable
attitude that a mistake has been made and that the Inquiry has nothing
to do with them. In other words, their association is not relevant
to the subject of the Inquiry. The simple example is a neighbour who socialises
with public servants from these particular departments. It is difficult
to see why that person should, technically, be subject to a penalty under
the Public Service Act 1922 if they chose to ignore the Inquiry.
If paedophilia is the issue, the non-public servant may rightly consider
that any comment they may feel obliged to make should be directed to child
welfare authorities or the police and not necessarily their neighbour's
public service employer. Equally, as noted above, if a non-public servant
was brought before the Inquiry under summons, that person does not have
to say anything which is self-incriminating.
Concern over the assumed breadth of the Commissioner's power to summons
a non-public servant is not new. As far back as 1901, the debate in the
House of Representatives on the initial Public Service legislation revealed
that there had been a divergence in approach between New South Wales and
Victoria in the use of such a provision in State Public Service legislation.
Victoria had such a provision while New South Wales did not. In the Commonwealth
Parliament the debate, in June 1901, on an equivalent provision in Commonwealth
legislation raised the issue of creating what was almost a court process
for administrative matters. In addition, the express example of a non-public
servant witness in Perth being called before a Public Service hearing
in Melbourne gave rise to an amendment to the Bill to insert authority
for the payment of reasonable expenses to the witness, rather than it
just being treated as a duty in the public interest.(46)
A further problem is the possible imbalance in the types of protection
available to witnesses. Public servants clearly have available to them
section 33 of the Public Service Act 1922 which applies the merit
principle to transfers and promotions and proscribes discrimination in
a range of matters including sexual preference (e.g. homosexuality or
bisexuality). This would be relevant if, say, a witness was identified
as having a particular sexual preference and they suffered discrimination
in their career in the service because of that admission (which, in theory,
could become public in the report-allowing for the fact that the Inquiry
has the option to include certain matters in a confidential annex). For
obvious reasons, section 33 has no relevance to persons who are not public
servants. Other statutes (at the Commonwealth, State and Territory level)
which prohibit discrimination on the grounds of sex or race, are, of course,
generally available for non-public servants.
Unlike a non-public servant, a public servant also has the avenue of
an independent review by way of a grievance concerning departmental action,
or inaction, under the Merit Protection (Australian Government Employees)
Act 1984.
Qualified Privilege
Qualified privilege is a principle in law which recognises that a person
who has a duty to report suspicions about a particular matter to, say,
a supervisor, should not be penalised if they make a comment to the supervisor,
in good faith, and that comment is later shown to be inaccurate. The broad
principle is:
A communication made bona fide upon any subject matter in which
the party communicating has an interest, or in reference to which he has
a duty, is privileged, if made to a person having a corresponding interest
or duty, although it contain criminatory matter which, without this privilege,
would be slanderous and actionable (per Campbell C.J. in Harrison v.
Bush) (47)
An example of the application of the principle of qualified privilege
(and its limitations) is found in the High Court decision in Guise
v. Kouvelis.(48) In that case a committee member of a Greek club was
looking on at a card game in the club. There was a dispute between the
players. The committee member called one of the player a 'crook' within
the hearing of a number of persons within the club. In an action for defamation,
the committee member raised the defence of qualified privilege. The High
Court held that qualified privilege did not apply because the committee
member was looking on as just another member of the club. The defence
of qualified privilege would only apply if the Committee member had a
duty to make a report to the club's Committee itself. There was no duty
for the committeeman to speak out amongst members within the club. The
High Court said:
In the present case the defendant was not defending or protecting
his own purely personal interests-i.e. interests otherwise than as a member
of the club. Protection of such interests did not require any statement
about the plaintiff to any other person. The defendant could protect himself
against the plaintiff by abstaining from having anything to do with him
and there was, from this point of view, no warrant for making any statement
to any other person that the plaintiff was dishonest, even if the defendant
honestly believed that to be the case. (49)
Section 89A of the Public Service Act 1922, is the statutory
application of the common law principle of qualified privilege. This is
a defence to an action for defamation. It is suggested that section 89A,
however, could be read narrowly to confine its statutory protection to
an oral or written report about the work and conduct at work of a public
servant and not to activities outside the workplace.
The protection of qualified privilege is available but it may have limited
or no application for a non-public servant who is asked to give evidence
about the social behaviour of a public servant. This is because a non-public
servant has no 'duty' to identify a public servant as, say, a homosexual
or bisexual, nor, it is suggested, has the Commissioner a 'duty' to report
on that matter. This may be the basis for the point made by Hon L Brereton
MP in his statement of concern to the House of Representatives about the
type of inquiry and that some non-public servant witnesses '...will have
no real protection against defamation'.(50)
It could be argued that a public servant who is called to provide the
Commonwealth Paedophile Inquiry with evidence is under a duty,
by virtue of being a serving officer, to provide information which may
include confirmation, say, to deny that a colleague is a paedophile but
rather someone who socialises with young adults of the same sex (thus
possibly implying homosexuality or bisexuality). Ideally, the officer
giving the information might simply confine the evidence to clarifying
that he or she has no reason to believe that a colleague is a paedophile.
There is no need to further speculate on the colleague's sexual preference
because, consistent with section 33 of the Public Service Act 1922,
such an issue is irrelevant. It is suggested that a non-public servant
is in a quite different relationship with the Inquiry. If the non-public
servant believes that another person is engaged in paedophile activity
then the forum to discuss that is with the police or child protection
services, and not with the suspect's employer. The discussion of other
matters, such as sexual preference, with the public servant's employer
is irrelevant to that person's employment and potentially defamatory.
It is acknowledged that there may be an argument that a slightly different
interpretation of qualified privilege is applied when the public servants
belong to a diplomatic enclave in a foreign country. In such a situation,
the social behaviour of colleagues (albeit irrelevant under the Public
Service Act 1922) may have consequences in terms of the reputation
and standing of the Embassy or High Commission. Consequently, other serving
officers may feel they have a need to comment officially on such behaviour.
In addition, there may be slightly more latitude for residents of that
country also to address an inquiry on a variety of examples of social
inter-action with Australian diplomatic staff. In both cases, however,
matters of alleged criminality are still, primarily, a police or child
welfare matter.
As a suggestion for further reform in the public sector, it may be timely
to revisit the issue of the lack of whistleblowing legislation at the
Commonwealth level. The Public Service Guidelines on Official Conduct(51)
contain a de facto recognition of the concept of whistleblowing.
Public Service Regulation 30 places a positive obligation upon public
servants in supervisory positions to report to the Secretary of the department
all breaches of the Regulations which come to their attention. A public
servant may also complain to the Ombudsman about administrative decision
making. Ironically, a public servant is proscribed from revealing departmental
information to the public without official permission (Regulation 35 and
section 70 of the Crimes Act 1914). The Senate Select Committee
on Public Interest Whistleblowing (1994) saw merit in the establishment
of an independent Public Interest Disclosure Agency but also recognised
the complexities in Australian law caused by the lack of uniformity in
defamation laws across Australia. (52)
Costs Involved in an Inquiry: Example of a less formal Royal Commission
Public inquiries are expensive. As noted above, the disrupted Carruthers
Inquiry into alleged irregularities in a Queensland election campaign
had cost $3 million at the time Kenneth Carruthers QC resigned on 29 October
1996. The Commonwealth's appropriation for the legal expenses of the Member
for Fremantle, Hon Carmen Lawrence, for legal representation before the
Marks Royal Commission was $800,000 (Appropriation Act (No. 4) 1995-96).
Of that appropriation, $319,927 was paid before appropriation lapsed on
30 June 1996. A new and further appropriation Bill for $50,000 is now
proposed.(53)
The Hon L Brereton has sought details of the costs already involved
in the Commonwealth Paedophile Inquiry. His Question Without Notice
was asked towards the close of the Sittings in December 1996 and the financial
details are yet to be made public by the Minister. Initial estimates put
the likely cost of the Inquiry at $1 million.(54)
The Commonwealth Paedophile Inquiry has issued guidelines on
Financial Assistance for Legal Costs Before the Commonwealth Paedophile
Inquiry. These guidelines indicate that the Commonwealth may grant
financial assistance for legal costs and related expenses where the person
appearing before the Inquiry is considered to be a central figure. A 'central
figure' means:
- the person had made or proposed to make allegations of paedophile
activities; or
- the person is the subject of allegations; or
- the person is alleged to have been a manager who actively covered
up information relating to paedophile activities.
Other applicants who are not central figures will have their claims
for costs considered on a case by case basis.(55) The Inquiry has expressly
stated that it intends to conduct its proceedings as informally as possible.
(56)
The Commonwealth Paedophile Inquiry should, because of its informality
and Terms of Reference, incur less public expenditure than a Royal
Commission. The separate but recent example of the Commonwealth's contribution
to the legal costs of the Hon Carmen Lawrence before the Marks Royal Commission
shows that Royal Commissions can involve significant costs. It may, however,
be a false economy if the Commonwealth Paedophile Inquiry finds
that it is limited in relation to its powers and immunities and is therefore
unable to compile as comprehensive a report as it might wish. The Full
Bench of the Federal Court in its decision on the appeal in the Alastair
Gaisford case (supra) involving this Inquiry expressly noted
that its orders would mean that considerable time and resources already
expended will have been wasted but that such a result was unavoidable
given the finding of a reasonable apprehension of bias.(57)
A Royal Commission into the public service is certainly not without
precedent. Even in colonial times in Australia there were eleven separate
Royal Commissions into various aspects of the civil service in the Australian
colonies.(58) The colonial experience probably reflected the impact of
the ground-breaking Northcote-Trevelyan report on the British Civil Service
in 1854 which identified the inefficiency and inappropriateness of patronage
in appointments to the civil service. Economic hardship in Australia during
the 1870s also focussed attention on the alleged '...extravagances and
maladministration of the civil service'.(59) A Royal Commission on
Postal Services to inquire into the workings of the Postmaster-General's
Department was appointed in 1908. It was comprised entirely of politicians.(60)
In more recent times, Royal Commissions into the Australian Public Service
and related activities have included major inquiries, such as the Coombs
Royal Commission on Australian Government Administration (1974),
as well as the single purpose Mitchell Royal Commission of Inquiry
Arising from the Social Security Conspiracy Prosecutions (1986).
The Mitchell Royal Commission is worth noting because the Letters Patent
issued by the Governor-General directed Dame Roma Mitchell to conduct
the inquiry '...with as little formality as circumstances will allow...'
and that '...it is not desirable that proceedings under this Commission
be prolonged.'(61) The Mitchell Royal Commission was formed to consider
compensation claims for a group of welfare recipients who were arrested
and charged with conspiracy to defraud the Commonwealth in 1978. Almost
all of the charges were later withdrawn.(62) It is suggested that the
Commonwealth Paedophile Inquiry could, equally, have been established
as a single purpose commission of inquiry under the Commonwealth's Royal
Commissions Act 1902, just like the Mitchell Royal Commission, instead
of an inquiry under the Public Service Act 1922.
Another approach may have been to take advantage of a current, and relevant,
Royal Commission and add to its inquiry topics, as was done in New South
Wales with the Wood Royal Commission.(63)
A concern over costs is not meant to diminish the importance of the
subject matter of the Commonwealth Paedophile Inquiry. The observation
is simply made (albeit, with the advantage of hindsight) that a single
purpose Royal Commission may have been a more suitable form of inquiry
in the long-run. Worldwide concern and condemnation over the subject matter
is evidenced by such significant and tragic events which have occurred
recently in Belgium and in Great Britain. (64)
It is surprising to note the similarity in events which produce and
accompany some commissions of inquiry into public administration. The
fact that there can still be legal challenges to the conduct of inquiries
speaks well for the vigilance of the courts and the strength of fundamental
principles, such as the separation of powers and the rules of natural
justice.
The selection by any Executive government of the type of inquiry may
not necessarily be motivated by political imperatives. Sometimes the subject
matter of the inquiry can be so sensitive that to allow unrestricted public
access and publicity may be counterproductive. In such cases, any benefit
obtained by the inquiry would be outweighed by the damage to innocent
parties who become subjected to the passions of the mob. This cautious
approach must be weighed against those who argue for public hearings.
For example, Lord Justice Salmon said in 1966:
When there is a crisis of public confidence about the alleged
misconduct of persons in high places, the public naturally distrusts any
investigation carried out behind closed doors. Investigations so conducted
will always tend to promote the suspicion, however unjustified, that they
are not being conducted sufficiently vigorously and thoroughly or that
something is being hushed up ... Unless these inquiries are held in public
they are unlikely to achieve their main purpose, namely, that of restoring
the confidence of the public in the integrity of our public life. And
without this confidence no democracy can long survive.(65)
Another feature of inquiries into public administration is that they
can take various forms. Some inquiries operate with full coercive powers
to compel evidence, even evidence which is self-incriminating. Others
have more limited coercive powers. Some have no coercive powers at all.
In setting up an inquiry, the Executive government must be mindful of
the need to arm the inquiry with appropriate powers and privileges.
At the Commonwealth level, there seems to be scope again to consider
the establishment of a Public Interest Disclosure Agency to assist whistleblowers.
Such an agency may generate appropriate reforms in the public sector on
a systematic basis, rather than achieve such reforms by the use of ad
hoc inquiries. Consideration might be given to the enactment of a
more comprehensive statutory basis for inquiries into the Public Service.
- Such as the Fitzgerald Royal Commission (1989), Report of a Commission
of Inquiry Pursuant to Orders in Council-Inquiry into Possible Illegal
Activities and Associated Police Misconduct, which brought to light
a police 'bagman', and the Wood Royal Commission into the New South
Wales Police Service which has provided immunity to certain key witnesses.
- Drawn from Sturgess, G. 'Corruption-The Evolution of an Idea 1788-1988'
in Prasser, S., Wear, R. and Nethercote, J.(Eds) Corruption and Reform:
The Fitzgerald Vision, University of Queensland Press, Brisbane,
1990.
- See Hampson, C. 'Some Notes Upon Commissions of Inquiry', AIAL
Forum, Australian Institute of Administrative Law, Canberra, (1996)
10 AIAL Forum.
- 53 ALR 402.
- 1 NSW LR 599
- Weller, P. (Ed.) Royal Commissions and the Making of Public Policy,
Centre for Australian Public Sector Management, Brisbane, 1994.
- Bird, R. Osborn's Concise Law Dictionary, 7th Edition, Sweet
& Maxwell, 1984: 140
- Quick, J. and Garran, R. The Annotated Constitution of the Australian
Commonwealth, Legal Books, Sydney, 1976: 720.
- ALJR 743.
- Ibid: 752.
- Weller, P. (Ed.) Royal Commissions and the Making of Public Policy,
Macmillan Education, Melbourne, 1994: 23.
- Section 3 Royal Commission (Police Service) Act 1994.
- Commission of Inquiry into the Relations Between the CAA and Seaview
Air, Australian Government Publishing Service, Canberra, September
1996.
- See section 19 of the Criminal Justice Act 1989 (Qld).
- See sections 26 and 27 of the Criminal Justice Act 1989 (Qld).
- See Syvret, P. 'Crucial MP may let Borbidge off "no-confidence"
hook', Australian Financial Review, 31 October 1996, and Dore,
C. 'Was Carruthers Nobbled', The Australian, 30 October 1996.
- Ibid.
- Editorial 'The end of Carruthers', The Sydney Morning Herald,
4 November 1996.
- See Dore, C. 'Untested Act added to Carruthers' weighty woes', The
Weekend Australian, 21 December 1996. The article also mentions
that the State Premier, Hon R. Borbidge, was also cleared of allegations.
- Lagan, B. 'Many believe public sector corrupt: ICAC', The Sydney
Morning Herald, 1 November 1996.
- Section 19 of the Public Service Act 1922 and Regulation 72A.
- MacDonald, B. Report on Allegations About Certain Aspects of Personnel
Management in the Department of Aboriginal Affairs, Australian Government
Public Service, Canberra, March 1989 (Parliamentary Paper No. 74
of 1989). The report was tabled in Parliament on 11 April 1989.
The Inquiry found that claims of widespread malpractice in DAA's recruitment
and staffing were not substantiated but that certain changes in personnel
practices were desirable. The Commissioner's delegate for that inquiry
was Mr Bruce MacDonald.
- Report of the Small Business Deregulation task Force, Time for
Business, Canberra, November 1996.
- As a parliamentary committee, the Victorian Law Reform Committee attracts
the privileges and powers of a Committee of Parliament.
A set of three significant Victorian reports on matters
related to company insolvency (Curbing the Phoenix Company),
over the period 1994 to 1995, resulted in a cross-over into Commonwealth
areas of responsibility. When a company fails and is unable to pay
its employees and creditors, but a company emerges shortly afterwards
(usually in the same industry) with a similar name, with the same
directors or with assets obtained from the previous failed company,
the emerging entity is called a 'phoenix company'. As noted in the
Summary to the Committee's Third Report (November 1995), on
1 August 1995, the Commonwealth Attorney-General announced that the
Commonwealth's Corporations Law Simplification Task Force would also
examine the issue of the 'phoenix company'.
The Victorian example demonstrates how a State-based inquiry into
problems encountered by local businesses and Victorian subcontractors
can have ramifications for the public administration of company
law on a national basis.
- The Prime Minister's statement of 17 May 1993 is included in the departmental
report by the Department of Transport and Communications, Inquiry
into Certain Aspects of the MDS Tendering Process 1992-93, Volume 2-Part
B, Commonwealth Government Printer, May 1993.
- See Ministerial Statement by the then Minister for Transport and Communications,
Senator Hon Bob Collins, Senate, Hansard, 26 May 1993: 1383.
- 175 CLR 564
- Section 7, Royal Commissions Act 1902.
- QB 73.
- Times (21 January 1964).
- House of Representatives, Hansard, 29 May 1996: 1696.
The Macquarie Dictionary defines 'paedophilia' as 'sexual attraction
in an adult towards children'. The definition given in the Commonwealth
Paedophile Inquiry is 'paedophile activities' mean 'activities
arising from the sexual attraction in an adult towards children,
including young adolescents'.
- As noted in the text, the main purpose of the Commonwealth Paedophile
Inquiry is to ascertain the manner in which allegations of paedophile
activities have been handled in agencies which have responsibilities
for foreign affairs, trade and overseas aid. The terms of reference
for the Inquiry (see Attachment A) conclude with the clause
that allegations of paedophile activities will be referred to the Australian
Federal Police.
- House of Representatives, Hansard, 29 May 1966: 1696.
- Ibid.
- Alastair John Gaisford v Christopher Terence Hunt and the Commonwealth
of Australia, [1996] 887 FCA 1, Federal Court of Australia, Action
No. ACT G59 of 1996, 11 October 1996.
- Ibid: see pp. 7 and 8 of the issued court decision of Justice
Mansfield.
- In a statement issued by Mr Hunt on 6 December 1996, following the
announcement of the Appeal Court decision, he stated 'I should like
to make it plain that at no time, either here or whilst furthering our
inquiries in South East Asia, have I formed any view, or stated that
I have formed a view, as to the existence of a so-called "homophobic
vendetta" '.
- See page 8 of the issued Court decision of Justice Mansfield, in Alastair
John Gaisford v Christopher Terence Hunt and the Commonwealth of Australia,
[1996] 887 FCA 1, Action No ACT G59 of 11 October 1996, and re-stated
on appeal in the Full Court decision at page 4 of Alastair John Gaisford
v Christopher Terence Hunt & Anor [1996] 1072 FCA 1 of 6 December
1996.
- In the statement issued by Mr Hunt on the day that the Appeal Court
decision was delivered (6 December 1996), he confirmed that he had an
'isolated and limited contact with a journalist' and this contact was
a bona fide attempt to obtain 'free publicity'. Mr Hunt indicates in
his statement that he assumes that there may have been 'misunderstandings
between the journalist and me'. Mr Hunt also makes the point that the
legal challenge against him was over an alleged appearance of bias not
that he had actually prejudged any issues. Mr Hunt also stated that
legal advice to him was that he '...should not become actively involved
in those proceedings by giving evidence...'.
- Alastair John Gaisford v Terence Christopher Hunt & Anor
[1996] 1072 FCA 1. (Action No. ACT G68 of 1996), the Full Court appeal
decision.
- Ibid: p. 14.
- Ibid: p. 15.
- See Campbell, R. 'Action on whistleblower ruled "unfair, invalid"',
The Canberra Times, 30 November 1996.
- House of Representatives, Hansard, 9 December 1996: 7674 (Proof).
- House of Representatives, Hansard, 29 May 1996: 1699.
- House of Representatives, Hansard, 25 June 1901: 1535.
- L.J.Q.B. 29, quoted in James J., Stroud's Judicial Dictionary of
Words and Phrases, 5th Edition, Volume 4, Sweet and Maxwell Limited,
London, 1986: 2025-2026.
- 74 CLR 102.
- Ibid: 111.
- Op cit
- Guidelines on Official Conduct of Commonwealth Public Servants,
Public Service Commission, Canberra, 1995.
- See Australia, Senate Select Committee on Public Interest Whistleblowing,
In the Public Interest, Canberra, August 1994.
- House of Representatives, Hansard, Question Without Notice:
Member for Fremantle, 19 November 1996: 7008.
- House of Representatives, Hansard, 9 December 1996: 7674 (Proof).
An estimate of $1 million has been mentioned in relation to the likely
costs of the Commonwealth Paedophile Inquiry (see report of the
Senate Finance and Public Administration Legislation Committee, Examination
of Budget Estimates 1996-97: Additional Information Received, Volume
1, Prime Minister's Portfolio, December 1996).
- Guidelines issued by the Commonwealth Paedophile Inquiry on
21 June 1996.
- Practice and Procedure issued by the Commonwealth Paedophile
Inquiry on 21 June 1996.
- Alastair John Gaisford v Terence Christopher Hunt & Anor
[1996] 1072 FCA 1. (Action No. ACT G68 of 1996) at page 15.
- Wettenhall, R.L. 'A Brief History of Public Service Inquiries' in
Smith, R. and Weller, P (Eds) Public Service Inquiries in Australia,
University of Queensland Press, Brisbane, 1978.
- Ibid.
- Caiden, G. Career Service, Melbourne University Press, Melbourne,
1965: 89.
- The Letters Patent are contained at pages 120-124 of Volume 1 of the
Commission of Inquiry into Compensation arising from Social security
Conspiracy Prosecutions, Australian Government Publishing Service,
Canberra, 1986.
- For a brief summary of the matter, see the Joint Press Release at
pages 113 to 119 contained in Volume 1 of the Commission of Inquiry
into Compensation arising from Social Security Conspiracy Prosecutions,
Volume 1, Australian Government Publishing Service, Canberra, 1986.
- The long-running Royal Commission into the New South Wales Police
Service was due to report in June 1996. Justice James Wood, the Royal
Commissioner, has been examining the conduct of police in that State.
The Commission's terms of reference have been expanded and the date
for reporting extended until 1997 to allow the Commissioner to report
on allegations of police protection of paedophiles. (Henry S. 'Paedophile
allegations extends police inquiry', The Australian, 3 February
1995). It is reported that the allegations made to the NSW Royal Commission
on the extent of alleged paedophile activity has resulted in no less
than six smaller inquiries. (Rayner, M. 'Children's rights must have
priority', The Australian, 1 April 1996). The political juggling
within the Government's own caucus in New South Wales has also cascaded
into the public arena as an attempt is made to strike a balance in the
expanded terms of reference so as to avoid an unedifying witch hunt
while at the same time avoiding a white wash. (McClymont, K. and Humphries,
D. 'Pursuing pedophiles: rebels with a cause' The Sydney Morning
Herald, 26 October 1996).
- In a national out-pouring of grief and anger, Belgians went on a national
strike on 16 October 1996 as a protest against the dismissal of an investigating
Magistrate Jean-Marc Connerotte because he had attended a fund-raising
event for missing children. Connerotte had been elevated to the status
of a national hero when he secured the arrest of an alleged perpetrator
and alleged accomplices suspected of involvement in a paedophile ring.
The investigations also uncovered the tragedy of the cruel treatment
and death of some child victims. Connerotte's political masters had
dismissed him because of an apprehension that his attendance at the
fund raiser indicated bias against the accused. (Associated Press, The
Sydney Morning Herald, 17 October 1996).
So serious has the response of citizens been in Belgium that the
Prime Minister, Mr Dehaene, has now promised sweeping changes to
the criminal justice system, including the end of political involvement
in judicial promotions. Public reaction culminated in a march of
more than 300,000 people through the streets of Brussels to protest
the government's handling of the matter. (Linton, L. 'Child sex
protest wins legal changes', The Australian, 22 October 1996).
In Britain, Prime Minister John Major has moved quickly to announce
government-sponsored Bills (in lieu of Private Members' Bills) to
curb stalkers and to establish a national register of child sex
offenders. The Prime Minister has taken up a promise of support
from the Opposition and the Liberal Democrat's so that the Bills
would be on the statute books without delay. (Jones, G. 'Major to
introduce paedophile legislation' The Age, 25 October 1995).
- Extract from the Report of the Royal Commission into Tribunals
of Inquiry, 1966, United Kingdom, quoted in Hampson, C. 'Some Notes
Upon Commissions of Inquiry', AIAL Forum, Australian Institute
of Administrative Law, Canberra, (1996) 10 AIAL Forum.
1. To consider the manner in which allegations of paedophile activities
by officers and former officers of the Department of Foreign Affairs and
Trade (including AusAID) and Austrade have been dealt with and, in particular,
to determine:
a. Whether they have previously been brought to the attention
of the Department, AusAID or Austrade by any means;
b. What actions were taken by the Department, AusAID or Austrade in
response to the allegations and whether they were appropriate in terms
of the Public Service Act, the Australian Trade Commission Act, departmental
or agency instructions and guidelines or the criminal law;
c. Whether appropriate mechanisms and procedures are and were in place
to provide officers of the Department, AusAID or Austrade with an avenue
to inform management confidentially of possible inappropriate or criminal
activity by fellow officers and to allow those allegations to be properly
investigated;
d. Whether administrative decisions have been taken and aid or DAP
funds committed or disbursed to facilitate or result in paedophile activities,
and whether sufficient and appropriate mechanisms are in place for the
scrutiny and accountability of the disbursement of aid funds, including
the Direct Aid Program (DAP), previously named the Head of Mission Discretionary
Aid Fund (HOMDAF), to ensure that opportunities to use such funds for
paedophile activities do not arise;
e. Whether there has been any basis to claims that the Department,
AusAID or Austrade have sought to cover up paedophile behaviour.
2. To examine any other issue which appears to bear directly on the
handling of allegations of paedophile activities, even if it does not
fall strictly into the above terms, if Mr Hunt judges it to be of sufficient
seriousness and relevant to this inquiry.
3. To recommend an appropriate and practicable code of conduct beyond
that applying to public servants in general to apply to all staff representing
the Australian Government in other countries.
4. To recommend whether and, if so, what additional mechanisms and procedures
are required to allow officers of the Department, AusAID and Austrade
to inform management of possible inappropriate or criminal activity by
fellow officers, taking account of any Government proposals for service-wide
procedures of this kind.
5. To refer all allegations of paedophile activities to the Australian
Federal Police.
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